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Government Continues to Avoid Court Rulings on Domestic Surveillance

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Three significant pieces of news, taken together, show that the Courts continue to chip away at Bush-and-now-Obama’s domestic surveillance programs.

FISA Court Encourages Government to Stop Collecting Some Metadata

First, and potentially most importantly, the FISA Court, after learning more about what the collection of telecom metadata entailed, raised some concerns with the government, leading them to voluntarily stop collecting it.

The Foreign Intelligence Surveillance Court, which grants orders to U.S. spy agencies to monitor U.S. citizens and residents in terrorism and espionage cases, recently “got a little bit more of an understanding” about the NSA’s collection of the data, said one official, who spoke on the condition of anonymity because such matters are classified.

The data under discussion are records associated with various kinds of communication, but not their content. Examples of this “metadata” include the origin, destination and path of an e-mail; the phone numbers called from a particular telephone; and the Internet address of someone making an Internet phone call. It was not clear what kind of data had provoked the court’s concern.

[snip]

The NSA voluntarily stopped gathering the data in December or January rather than wait to be told to do so, the officials said. The agency had been collecting it with court permission for several years, officials said.

Curiously, Adam Schiff is quoted in the story specifically addressing VOIP.

Al-Haramain Agrees to Vaughn Walker’s Judgment

Next, on Friday, al-Haramain responded to Vaughn Walker’s tidy judgment on FISA–which I have argued was crafted to be rather tempting to the government–by basically accepting his judgment and backing off any further constitutional claims associated with the suit. In their proposed judgment, al-Haramain basically:

  • Asks for the $61,200 in damages defined by the statute ($20,400 for each of three plaintiffs, which comes from $100/day for each day of violation)
  • Asks for $550,800 total in punitive damages ($183,600 for each of three plaintiffs)
  • Asks for legal fees (bmaz estimates these might run to around $3,375,000)
  • Dismisses all other constitutional claims and claims against Robert Mueller as an individual
  • Requests a declaration that “the defendants’ warrantless electronic surveillance of plaintiffs was unlawful as a violation of FISA”
  • Requests an order that the government purge all information illegally collected (except that which would be exculpatory)

In short, al-Haramain is basically saying, “gosh what a nifty solution you’ve crafted, Judge Walker. Let’s see what Eric Holder thinks of it.”

Now, the government might have some complaint about the particular description of its illegal wiretapping. And I’m betting they’re going to have operational troubles with purging the illegally collected information, particularly if it means purging a lot of poisoned fruit along with it. But I still do think the government will try to find a way to accept Walker’s nifty solution.

Government Backs Down in Request to Access Stored Emails without Warrant

Finally, in another case in Denver, the government backed down a request that Yahoo turn over the stored emails of one of its customers without a warrant. Yahoo, EFF, and a bunch of other privacy advocates had made a stink, and rather than face an adverse judgment, the government backed down.

In the face of stiff resistance from Yahoo! and a coalition of privacy groups, Internet companies and industry coalitions led by EFF, the U.S. government today backed down from its request that a federal magistrate judge in Denver compel Yahoo! to turn over the contents of a Yahoo! email user’s email account without the government first obtaining a search warrant based on probable cause.

The EFF-led coalition filed an amicus brief this Tuesday in support of Yahoo!’s opposition to the government’s motion, agreeing with Yahoo! that the government’s warrantless seizure of an email account would violate both federal privacy law and the Fourth Amendment to the Constitution. In response, the Government today filed a brief claiming that it no longer had an investigative need for the demanded emails and withdrawing the government’s motion.

As EFF points out, the government has repeatedly backed down when challenged on this type of collection and related collection.

This is not the first time the government has evaded court rulings in this area. Most notably, although many federal magistrate judges and district courts have ruled that the government may not conduct real-time cellphone tracking without a warrant, the government has never appealed any of those decisions to a Circuit Court of Appeals, thereby preventing the appeals courts from ruling on the issue. Similarly, a federal magistrate judge in New York, Magistrate Judge Michael H. Dolinger, has twice invited EFF to brief the court on applications by the government to obtain private electronic communications without a warrant, and in each case, the government withdrew its application rather than risk a ruling against it (in one case the government went so far as to file a brief anticipating EFF’s opposition before finally dropping the case).

Which I think illustrates the common theme here. While we don’t yet know what the Obama Administration will do in the case of al-Haramain, in the two other cases, they have backed off of surveillance activities to avoid any adverse ruling from Courts. That’s partly a testament to their discomfort with their own legal position with regards to these activities. But it’s also an indication that they’d rather continue their programs in some lesser form than risk having a Court declare the whole program unconstitutional.

If I’m right about all this, it means the government is balancing facing an Appeals Court on FISA and State Secrets, versus paying less then $4 million to close the chapter on Bush’s most egregious form of domestic surveillance while still protecting executive programs that engage in similar collection.

Eric Holder Addresses the Constitution Project

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I happened to get lost, end up in DC, and show up to cover the Constitution Project’s annual dinner, particularly Attorney General Eric Holder’s keynote (see here for the [!]Breaking [!]News on that front).

Before I get into that, I just wanted to note how gratifying it is to be in a crowd of DC folks who fight for things like defendant rights and rule of law. The two awardees were George Kendall and Thomas Pickering (Alberto Mora introduced Pickering).

As Dahlia Lithwick said in her Emcee gab, these folks are the heros.

Here’s my liveblog of his talk. It sure felt like Holder’s apologia for military commissions to a bunch of civil libertarians. When you come before a bunch of people who believe in civilian trials and spend most of your time trying to push the benefits of both civilian trials and military commissions, it does not bode well.

After thanking the Constitution Project for its support of expanding access to legal services, Holder addresses his testimony before the Senate Judiciary Committee. [here’s his testimony]

Protecting America’s safety, America’s interests, and America’s values by adhering to the rule of law.  We are a nation at war. Go to bed each night thinking about how best to keep our people safe. I am determined to win this war. I know we can. We won’t win by adhering to a rigid ideology or a narrow approach. But we are also a nation that lives under rule of law. Just as on the battlefield, our government must use all the tools we can to win the war.

Scoffs at those who say Obama Administration has continued policy of Bush Admin.

Calls military commissions and civilian trials “weapons against those who choose to do us harm.”

Differences between the two fora.

Proposal by some to do away with civilian courts, not realistic. Without civilian authority, we would lose one of our key weapons, It would deny us means to punish guilty, and it would be disservice to history of civilian justice system. No question that if such a plan advances it would harm our national security.

Just look at what civilian courts have achieved.

Intelligence Undie bomber has provided has been actionable.

Names the successes:

  • Najibullah Zazi
  • Undie Bomber
  • David Headley
  • Aafia Siddiqui

In some cases, military commissions appropriate. Congress has taken extraordinary steps to improve commissions since they were first introduced. MCs reflect realities of battlefield. I have faith in our MCs, which is why I have referred 6 cases. There is no inherent contradiction between referring cases while at the same time prosecuting terrorists in civilian courts.

Commissions only have jurisdiction over AQ and affiliated groups. Not Hamas, not FARC. Not against Americans. MCs can only prosecute some violations of rules of law. Civilian prosecutors can also make other charges: firearms, false statements. Terrorism plots can be disrupted, while still collecting information. Civilian courts can provide just punishment for variety of bad acts.

Our civilian courts have 200 years of precedence. They have a reliability that gives them credibility.

Describes preference of allies to cooperate with civilian trials, says he hopes that as MCs get a better reputation, allies will cooperate on MCs too.

Debate has meant to scare rather than educate.

Holder picks up his defense of prosecutors who serve honorably. They deserve our gratitude and our respect.

Reading Tea Leaves on Warrantless Wiretapping

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Sorry I’ve been distracted all day. And yes, I will try to comment on the surprise news that Steven Kappes will be leaving the CIA next month later this evening.

But in the meantime, I wanted to look at this exchange between Arlen “Scrapple that used to be Haggis” Specter and Eric Holder on the recent al-Haramain verdict.

SEN. SPECTER: Mr. Attorney General, there will be another opportunity to test the constitutionality of the warrantless wiretaps through the appellate process and, hopefully, to the Supreme Court of the United States. And from the decision made by Chief Judge Walker recently in the San Francisco case, holding that the warrantless wiretaps were unconstitutional, saying that the requirements of the Foreign Intelligence Surveillance Act precluded the warrantless wiretaps, that there had to be probable cause and a warrant.

There was an opportunity to have a review by the Supreme Court of the United States in the case arising out of Detroit which federal court there declared the warrantless wiretaps unconstitutional. The Sixth Circuit cited there was no standing. I thought the dissent was much stronger than the two judges in the majority. Well-known that standing is frequently used as a way of avoiding deciding tough questions, and Supreme Court of the United States denied cert.

So at this point, after a lot of specification, a lot of discussion, we do [not?] know, dispositively, whether the president’s power as commander in chief, under Article II, justifies warrantless wiretapping or whether the explicit provisions of Foreign Intelligence Surveillance Act govern.

Would you press to have the case coming out of the San Francisco federal court go to the Supreme Court for a decision there?

ATTY GEN. HOLDER: We have really not decided what we’re going to do at this point with the decision that was made by the judge. The focus there had really been not necessarily as much on the legality of the TSP as the protection of sources and methods. And a determination as to what we are going to do with the adverse ruling that we got from the chief judge — the district court judge, has not been made as yet. We are considering our options.

SEN. SPECTER: What do you think?

ATTY GEN. HOLDER: (Laughs.) Well, I think that I haven’t made up my mind yet. I think that we have to see what the impact will be on this case with regard to a program that I guess ended, I think, 2007, 2006.

My view is that, to the extent that — I can’t get in too many operational things here, but the support of Congress, the authorization from Congress to conduct these kinds of programs is a way in which the executive branch should operate. It is when the executive branch is at its strongest, when we have the firmest foundation, is when we work with members of Congress to set up these kinds of programs, and especially when one looks at, as you point out, you know, the requirements under FISA.

So I think that we will have to consider what our options are and try to understand what the ramifications are of the judge’s ruling in the Al-Haramain case.

Read more →

Holder Testifies Before Senate Judiciary Committee

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The Committee feed is screwy right now, but cspan.org is carrying it. Pat Leahy will not be there today; he’s at a funeral. I don’t know if Herb Kohl (who will act as Chair) had an opening statement or not. But Jefferson Beauregard Sessions is up now whining about civilian trials.

(Incidentally, at 10, the House Judiciary Commitee will have Glenn Fine and Valerie Caproni talking about the Exigent Letter IG Report. I’ll do my best to keep my eye on that too.)

Sessions apparently doesn’t know there was a hearing last week in a military commission, which basically consisted of everyone looking at each other and admitting that MCs have no rules right now.

Here’s Holder’s statement.

Holder: 19 USA nominees and 17 Marshal nominees pending.

Holder now listing all the terrorists prosecuted in civilian courts.

Use every tool available. Includes both civilian and military commissions. Referred 6 cases to military commissions. It would seriously weaken national security not to have civilian trials.

9/11 Commission trial. No decision yet.

Kohl: Review of 240 detainees. In your testimony did not mention if and when you plan to close Gitmo. Update?

Holder: Still intention to close Gitmo. Once was bipartisan support for closing it. Both men who ran for President last year supported closing Gitmo. Will close as soon as we can.

Holder basically says they intend to use Thompson to hold people indefinitely.

Kohl raises Holder’s comment about reading Miranda rights to Osama bin Laden.

Kohl: Do you still believe civilian trials are better? When can this decision be made.

Holder: Reviewing decision. NY is not off the table. Have to take into consideration concerns raised by local community. Expect to be able to make determination in a number of weeks.

Read more →

Meet Deputy Attorney General Robert Gibbs

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I guess, in addition to President Rahm Emanuel and Attorney General Lindsey Graham, Deputy Attorney General Robert Gibbs sees the wisdom in putting aside rule of law for political expediency.

Some policy advisers have wondered why the administration’s flack is so often in attendance, but insiders fluent in the administration’s power dynamics know Obama values his views. According to one administration official, who would not be quoted speaking about internal White House discussions, Gibbs late last year pointed out the political perils of letting the Justice Department try Khalid Sheikh Mohammed in a civilian court and has urged the president to ignore Wall Street critics who argue Obama has adopted too populist a tone when speaking out against executive bonuses. [my emphasis]

You know, when Karl Rove unacceptably took over DOJ, he did so to support world domination. He had a plan.

But apparently we’ve decided to shred the Constitution for no other reason than a press flack thinks it would be smart.

Why DOJ Is Likely to Accept Vaughn Walker’s Ruling

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As I posted earlier, Judge Vaughn Walker ruled against the government in the al-Haramain case today. Basically, Walker ruled that al-Haramain had been illegally wiretapped and the case should move to settlement judgment (corrected per some lawyer).

But there’s more to it. I think Walker has crafted his ruling to give the government a big incentive not to appeal the case. Here’s my thinking.

As you recall, last year when Walker ruled that al-Haramain had standing and therefore its lawyers should get security clearance that would allow them to litigate the case, the government threatened to take its toys–or, more importantly, all the classified filings submitted in the case–and go home. After some back and forth, Walker instructed the parties to make their cases using unclassified evidence; if the government wanted to submit classified evidence, Walker said, then al-Haramain would have to be given clearance to look at and respond to the evidence. The move did two things: it neutralized the government’s insistence that it could still use State Secrets to moot Walker’s ruling that al-Haramain had standing (and, frankly, avoided a big confrontation on separation of powers). But it also forced the government to prove it hadn’t wiretapped al-Haramain illegally, since it had refused to litigate the case in the manner which Congress had required.

The government basically refused to play. It made no defense on the merits. Which made it easy for Walker to rule in al-Haramain’s favor.

That’s the big headline: that Walker ruled the government had illegally wiretapped al-Haramain.

But there were two more parts of the ruling that are important. First, Walker refused al-Haramain’s request that he also issue an alternate ruling, one that relied on his review of the wiretap log and other classified filings, that would amount to a ruling on the merits. He basically said that such a ruling would muddy up the record if and when this case was appealed.

He also dismissed al-Haramain’s suit against the only remaining individual named as an individual defendant, Robert Mueller.

These last two parts of the ruling are, I think, the big incentives Walker has given for the government to just accept this ruling.

If this ruling stands, al-Haramain will get a ruling that the wiretapping was illegal. The government will be directed to purge any records it collected from its databases (I’ll explain in a later post why I think this will present some problems). And it’ll be asked to pay a fine, plus legal fees. But the fines, at least ($100 per day per day of illegal wiretapping) might end up being a relative pittance–tens of thousand or hundreds of thousand of dollars. Sure, there will be punitive fines and legal fees for four years of litigation. But the government was happy to settle Hatfill and Horn for millions, why not have this be done for the same range of millions?

What al-Haramain won’t get–unless it litigates some of the other issues in the case, which likely can be dismissed with State Secrets–is access to what the government was doing. Or details of how it came to be wiretapped illegally.

I’m betting that the government will be willing to accept the ruling that it illegally wiretapped al-Haramain in exchange for the ability to leave details of how and what it did secret, leaving the claim of State Secrets largely intact.

There is little risk that other people will sue on the same terms al-Haramain did, because few, if any, other people are going to be able to make the specific prima facie case that they were wiretapped that al-Haramain did. Few people are going to be able to point to public FBI statements and court documents to prove their case, as al-Haramain was able to. And anyone who does sue will end up before Walker, who has dismissed all other suits precisely because they lacked the specific proof that they were wiretapped that al-Haramain had. Plus, with the extent to which Congress has already gutted FISA, there’s little risk someone could sue going forward.

Since Walker dismissed the suit against Mueller, the government doesn’t have any individuals on the hook still for this illegal activity.

And, finally, by accepting this ruling–which argues that only if Congress has provided very specific guidance about court review, will a law automatically trump State Secrets–the government preserves the status quo on State Secrets largely intact (unless and until the full 9th Circuit panel upholds the Jeppesen decision, but I have increasing doubts they will).

So you decide. If you’re President Obama and Attorney General Holder, both of whom have already said that the illegal wiretap program was illegal, which are you going to choose? Accepting a ruling that says it was illegal, in exchange for keeping the details of that illegality secret? Or the invitation to take your chances with an appeal?

Royce Lamberth: Let’s Make a Deal

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Royce Lamberth appears to be having a split the baby moment in the Richard Horn suit.

As you recall, back in the Clinton era, a DEA official sued the government for illegal spying on him. He alleged that State and CIA conspired to thwart his efforts to cooperate with the Burmese government on drug eradication by spying on him and using information collected to trump up reasons to get him ousted from his post. The suit had been drawing on for years, most recently through the improper invocation of state secrets. Judge Royce Lamberth went ballistic last year when he discovered the CIA and DOJ had been lying to sustain their invocation of state secrets. As predicted, in response DOJ decided to settle the suit, not least because any decision on this case was going to imperil their effort to hide behind state secret to get away with illegally wiretapping al-Haramain. Since last fall, Lamberth has been deliberating whether to let them settle the suit, and/or whether he should go on with investigations into the government’s misconduct in the suit itself.

As Josh Gerstein reports, Lamberth has proposed an implicit deal with the government: if it will treat the case as it would have under Eric Holder’s new state secrets policy, he will allow the government to settle. His proposed deal is this:

  • Al-Haramain will be permitted to submit their amicus curiae brief opposing the vacating of Lamberth’s earlier opinion in the suit, but he will allow the settlement anyway (see this post for more background on the issue)
  • Horn will get his $3 million settlement and taxpayers will, as they did with the Hatfill settlement, pay to make up for the misconduct of government officials
  • DOJ will refer the misconduct of the CIA and DOJ in this case to the Inspectors General of those agencies
  • DOJ will also alert Congress to details of the case, in particular regarding “disturbing evidence” from a sealed motion “indicating that misconduct occurred in the Inspector General’s Offices at both the State Department and the Central Intelligence Agency”

Aside from the injustice (which Lamberth is bugged about, but not bugged enough to refuse the settlement) that taxpayers have to pay because government officials engaged in misconduct, this proposition will pretty much guarantee that the government gets away with its scheme to avoid legal consequences by invoking state secrets.

Plus, there’s a tremendous level of irony here. Some of the documents over which the government had invoked state secrets were IG Reports. Yet Lamberth’s proposal to make this right is to do more IG Reports? And while the CIA Inspector Generals has turned over at least twice since the misconduct in question, Lamberth is literally proposing that having CIA’s Inspector General investigate wrongdoing by CIA’s Inspector General will somehow make this right.

Update: I’ve been informed that there is a practice of having other IGs investigate when an agency’s IG is accused of misconduct.

Koh v. Johnson: Material Support in Far Away “Battlefields”

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I don’t know about you. But I’m sort of bored with the Holder v. Rahm fight over torture and Gitmo. My hope is they’ll start a military commission trial, it’ll get delayed and challenged, and Holder will be able to demonstrate in terms even Rahm understands that civilian trials are not just a question of politics–they are also clearly more efficacious.

Ah well.

Lucky for us, there’s a new debate to watch, this one between State Department Legal Advisor Harold Koh and DOD General Counsel Jeh Johnson, over whether Presidential wartime powers are limited to those actually in al Qaeda, or include those more loosely affiliated with the organization. As Charlie Savage describes, both have written secret memos advocating a position on the issue.

But behind closed doors, the debate flared again that summer, when the Obama administration confronted the case of Belkacem Bensayah, an Algerian man who had been arrested in Bosnia — far from the active combat zone — and was being held without trial by the United States at Guantánamo. Mr. Bensayah was accused of facilitating the travel of people who wanted to go to Afghanistan to join Al Qaeda. A judge found that such “direct support” was enough to hold him as a wartime prisoner, and the Justice Department asked an appeals court to uphold that ruling.

The arguments over the case forced onto the table discussion of lingering discontent at the State Department over one aspect of the Obama position on detention. There was broad agreement that the law of armed conflict allowed the United States to detain as wartime prisoners anyone who was actually a part of Al Qaeda, as well as nonmembers who took positions alongside the enemy force and helped it. But some criticized the notion that the United States could also consider mere supporters, arrested far away, to be just as detainable without trial as enemy fighters.

That view was amplified after Harold Koh, a former human-rights official and Yale Law School dean who had been a leading critic of the Bush administration’s detainee policies, became the State Department’s top lawyer in late June. Mr. Koh produced a lengthy, secret memo contending that there was no support in the laws of war for the United States’ position in the Bensayah case.

Mr. Koh found himself in immediate conflict with the Pentagon’s top lawyer, Jeh C. Johnson, a former Air Force general counsel and trial lawyer who had been an adviser to Mr. Obama during the presidential campaign. Mr. Johnson produced his own secret memorandum arguing for a more flexible interpretation of who could be detained under the laws of war — now or in the future.

Part of me actually wonders whether the debate stems at least partly from Johnson’s greater familiarity with whom we’re already keeping–which includes a bunch of people whose “material support for terrorism” is really quite tenuous. That doesn’t justify holding them, but this may be a question about whom we have already held for 9 years.

Still, the ramifications of holding those who materially supported al Qaeda are pretty ominous, given the fairly expansive notion this country has used to claim material support.

And meanwhile, David Barron–Dawn Johnsen’s stand-in–basically punted on this question, seemingly hoping that some judge who is not a radical Bush appointee will make the decision for him.

DOJ Still Deliberating about 2006 White Paper

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As I noted in my last post, the Obama Administration is following Bush Administration precedent in shielding OLC memos from Congressional oversight.

The Kyl and Coburn requests for OLC memos on any rights Gitmo detainees would get if brought into the US were not the only questions about OLC memos posed to Eric Holder after his November 2009 appearance before the Senate Judiciary. Russ Feingold raised an issue he always raises during oversight hearings: the still-operative OLC memos authorizing warrantless wiretapping.

Office of Legal Counsel White Memos:

20. In your October 29, 2009, responses to Questions for the Record from the June 17, 2009, Department of Justice Oversight hearing, you stated that there was an ongoing review of whether to withdraw the January 2006 White Paper and other classified Office of Legal Counsel (OLC) memos providing legal justification for the NSA’s warrantless wiretapping program. What is the current status of that review? When will it be complete? Has anyone at the Department made an affirmative decision to leave those opinions in effect?

Response: The Department is still conducting its review, and will work with you and your staff to provide a better sense of the timing of the completion of the review. No one in the Department has made any affirmative decision about the treatment of the OLC opinions.

This is the White Paper based largely on a May 6, 2004 Jack Goldsmith opinion written after the hospital confrontation and designed to replace Yoo’s expansive claims to inherent authority with an argument that the AUMF authorized the warrantless wiretap program. And according to Holder, DOJ is still dithering around with the question of whether they need to withdraw the memo.

Presumably, that decision is being made at least partly at OLC. You know–OLC? The department Dawn Johnsen should be running?

And I find that curious because, while I have no idea what Acting OLC  head David Barron thinks of the January 2006 White Paper, we do know what another key OLC attorney thinks about it. While still at Balkinization, Marty Lederman repeatedly explained why the AUMF could not be claimed to have authorized the warrantless wiretap program. In February 2006, Lederman was one of a number of lawyers who wrote Congress explaining that the AUMF argument made no sense. In March 2006, Lederman wrote a long post analyzing what David Kris–now AAG for National Security–said in arguing that the AUMF couldn’t justify the warrantless wiretap program.

Yet, in spite of the fact that two of the DOJ’s key people believe this White Paper to be bogus, DOJ is still trying to figure out whether they need to withdraw it.

Another Administration withholding OLC Memos

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I’m going to have a few posts on answers Eric Holder gave to the Senate Judiciary Committee’s Questions for the Record submitted after his last appearance in November 2009.

Two of the questions (one from John Kyl and the other from Tom Coburn) asked whether Gitmo detainees brought to the United States for civilian trial would get additional constitutional rights. Both Senators asked Holder for details on OLC opinions on whether this would happen.

Though Holder did point to a public document (it’s the last several pages of his response packet) laying out the risks that courts would require even military commissions to grant such constitutional rights, he refused to let Congress see the OLC memos in question. Here’s Kyl’s question and response.

Prosecution of Khalid Sheikh Mohammed and Other 9/11 Conspirators in Federal Court :

68. Now that the Administration has made a final decision to bring Khalid Sheikh Mohammed and other 9/11 conspirators to the United States for prosecution, please provide this Committee with any memoranda written by the Office of Legal Counsel articulating what additional constitutional and statutory rights detainees may receive by virtue of their presence in the United States that are not currently available to them at Guantanamo.

Response: Please find attached a memorandum concerning the application of the Due Process Clause of the Fifth Amendment to military commission proceedings in the United States and at the Guantanamo Bay Naval Base, which the Department of Justice previously provided in response to a congressional inquiry (Attachment 3). The Department would have substantial confidentiality interests in any other memorandum that OLC or other components might have prepared on this topic.

As I said, Coburn asked a similar question and got an identical response.

Now, I get a weird spidey-sense every time DOJ refuses to show members of Congress who have an oversight role the OLC memos that DOJ has written. Even if these memos say Khalid Sheikh Mohammed would have the right to free health care and a shiny new pony the moment he was taken off a plane in the continental US, I still think Committee Members with a proper oversight interest ought to be able to see these memos.

But I gotta say, I also suspect there’s a reason they’re so insistent on not only the existence of memos, but also their right to see them. Is it possible that Bradbury or Yoo or someone wrote up a KSM’s shiny pony memo before they left DOJ as one more justification for keeping Gitmo open indefinitely? Are they hoping to flush out another of the hack memos written under the Bush Administration?